SPEECH 



F 

Te7 



OF 



HON. GEORGE E. PUGH, OF OHIO, 



ON THE 



KANSAS LECOMnON CONSTITUTION; 



DELIVERED 



IN THE SENATE OF THE UNITE© STATES, MARCH 16, 1858, 







WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1858. 




Book_-L 



^ 



SPEECH. 



The Senato lisvinj nnder consideration the bill for th« 
idmissioii of Ktuisas ijito iho Union as a Stute — 

Mr. PUGHsniJ: 

Mr. Presidext: It was not my purpose ori- 
ginally (o spoiik to the question at large. The 
vote 1 should otherwise Imve given, in accord- 
ance \vit!i my own opinions, lias been taken from 
under my control by the instruction of the Gen- 
eral Asscini)ly of Oliio, in which the political 
party to which I belong ha.s a decided major- 
ity. I will say, however, individually, that 1 re- 
gard the act passed by the Territorial Legisla- 
ture of Kansas, on the lOth February, 1857, a 
true and substantial copy, in every material pro- 
vision, of the bill which passed the Senate of the 
United .States on the 2J of July, lf<56. That bill, 
at th.e time, after the most thorough di.scussion, 
and the most careful and anxious consideration, 
received my vote and unqualified approval. Af- 
terward.-j, before the people of my State, in their 
primary assemblies, it was my duty and my pleas- 
ure to explain, as fully as I was a!)lf , the purposes, 
the principles, and the details of that bill; and, at 
all event, the party to which I belong, and with 
which I have always been associated, gave the bill 
a like approval. 

Nor, sir, do I regard it material v.'^hother that 
bill was passed by the Congress of the United 
States, or by the Territorial Legislature. I know 
some distinction has been attempted in that re- 
i;ard; but after a thorough examination of the his- 
tory of all the cases of the admission of States 
into the Union, my own judgment is, that the 
most regular manner, and, originally, the only 
regular manner, for the application ofa new Stale, 
is through a convention called by the Territorial 
Legislature. The first three of the States admit- 
ted, aftLT the formation of the Constitution, had 
no enabling act. Vermont and Kentucky wma 
not authorized by Congress to take any stups to- 
ward the formation of State governments. They 
proceeded under the authority of the States from 
which they were separated. Tenuesaee, the third 



State, proceeded under the sole authority of her 
territorial government. 

The first enabling act ever passed was in the 
case of my own State, and the na.sons for it weiv 
peculiar and im[)eralive. Undi.-r the ordinance of 
July 13, 1787, the people did not elect the Council 
or Senate of the Territory. The Councilors were 
nominated by the House of P.,epresGntatives, and 
chosen by Congress. No man could be a ri'pre- 
sentalive, even in the most numerous branch of 
the Territorial Legislature, unless he owned a fee- 
simple estate in two hundred acres of land, nor 
could any man be a voter for a representative un- 
less he owned a freehold estate in fifty acres. A» 
a consequence, the Federal party, although a mi- 
nority of the peojde, controlled the Territorial 
Legislature. Without going at large into the (sir- 
cumstances which, in some other form, I shall lay 
before my constituents, it is enough to say thai 
this Federal control of the Legislature, with the 
assistance of an absolute veto in the hands of the 
Governor, was so exercised as to prevent tlie ad- 
mission of Ohio into the Union at the proper time, 
and exercised for merely jiartisan purposes, h 
was to redress this usurpation on tiie part of the 
Territorial Legislature that Congress, for the first 
time in our history, passed an enabling act. It 
was not based on the ground that the Territoriai 
Legislature lacked the power. It was based on 
the ground that the Legislature had the power 
and refused to exercise it. 

The next case v.'as that of the State of Lnnio- 
iana. In the petition of the Territorial Lfgislatui*- 
of Orleans, which will be found in the Ainerican 
State Papers, it appears that the people of that 
Territory, through their Legislature, had at (inv- 
time endeavored to form a State goveri',merit,ar'ul 
Congress had refused to recognize their proceed- 
ings; and, therefore, at a subsequent period, the 
Legislature petitioned Congrps.s for an enal)!ing 
act, and that enabling act was passed in response 
to the petition. The.se two cases, although S!>ecia' 
in their circumstances, were followed withoijr any 
quealion in the instances of Indiana, Mi.ssisiippi, 



Alaljania, Illinois, and Missouri, over ail of which 
Stales the oriJinance of 1787, with or withoiUthe 
restriction of slavery, extended. 

The difficulty in the case of Missouri was this: 
she had complied with every condition in the act 
of Coui^ress; she was entitled to have her Senators 
and Representative sworn upon the presentation 
of their credentials. When the first enablinuact 
for the State of Ohio was before Cono;ress, wiien 
the Federal party denounced it as usurpation hy 
Congress, the Democratic Republican party d(^- 
fended it on the ijround that it was a conditional 
act of admi.ssion; that whenever the Territorial 
Legislature had taken steps for the assembling of 
a convention, and the consiitntion of the new State 
had been formed, then Congress had merely to 
admit the .State; but whenever no convention had 
been called, and no constitution had been formed, 
thai then Congress might pass the act of admis- 
.sion beforehand, defining the boundaries and pie- 
.<icril)iiig the condiiions; so that I take an enabling 
act to be, as I said some time since on this floor, 
a conditional act of admission. Missouri had 
complied with the condition; she was, therefore, 
entitled to have her Senators and Representativi; 
sworn, for it is literally true, as has been stated 
several times on this floor, that the State of Ohio, 
in which case the first enabling act was passed,' 
never had any other admission into the Union. 
}.Ier constitution was presented here; it was re- 
ferred to a cominitiee with special instructions to 
inquire what more was necessary to enable the 
Stale to enter the Union. The committee reported 
liiat nothing more was nece-ssary, that as soon 
as the laws of the United States had been ex- 
tended over the State, and a district court estab- 
lished with a j:idge, murslial, and attorney, the 
State was as completely one of the United States 
of America as any of the original thirteen. I say 
the outrage in the case of Missouri, was, that her 
Senators and Representative were not sworn. 
The Republican members contended at the time 
that Missouri was a State of the Union, unjustly 
deprived of her re| resentation in Congress, as 
will appear from an examination of the reported 
debates. Finally, however, it resulted in the fa- 
ttious compromise of May 2, 1821, by which, 
underajoint resolution, tiie Senators and Repre- 
sentative were admitted. 

After the case of Missouri, more than quarter 
of a century elapsed without another enabling act 
by Congre.-ss; and during that time Maine, Mich- 
igan, Arkansas, Iowa, Florida, and Texas, en- 
tered the Union. The next enabling act was in 
the case of Wisconsin, August G, 1846. That 
would have been sufficient, when complied with, 
to entitle her Senators and Representatives to be 
.sworn; but the convention of Wisconsin altered 
the Ijoundaries of the Slate, and therefore it was 
necessary to apply to Congress for a consent to 
this alteration. This appears by the joint reso- 
lution for her admission, March 3, 1817. The 
next case was that of California, which was ad- 
iniiied in Se[iteinbcr, 1850— a Slate received not 
only without an enablinir act, but witliout any 
previous tiTiiiorial organization. 

Of the eighteen new Stales, eight had enabling 



acts, and ten had not. The majority of instances 
is against an enabling act; tlie history of the 
question is against it. Where do Senators find 
a power in the Congress of the United States 
to prescribe the assembling of a convention and 
the formation of a State constitution ? It is not 
given in the Constitution of the United States. 
Our power is to admit new States; and we can 
as well admit them with a constitution already 
formed as upon a constitution formed at our ex- 
press ifistance. The justification for an enabling 
act, when first proposed during the administra- 
tion of Mr. Jefferson, was, that Compress admit- 
ted the State upon a condition to be complied 
with afterwards. I therefore repeat that the con- 
vention act of February 19, 18.">7, passed by the 
Legislature of Kansas, is as regular, as author- 
itative, as perfect in every re.'»[)ect, as if the other 
House of Congress had agreed to the Toombs 
bill, whicli we passed in July, 18.)G. The con- 
vention originated, then, under an act to which I, 
in common with all my political friends in this 
body, gave unqualified ap[)roljation. 

Now, sir, it seems to me individually, sjieaking 
for no one else, meanin;; no imputation on any 
one else, that two questions remain to those who 
voted for the pacification bill, as we called it in 
1856, namely: First, has the act of the Territorial 
Legislature of February 19, 1857, been substan- 
tially pursued ? Second, has anything since trans- 
pired in ihe history of Kansas which ought to re- 
quire some additional provi.sion, some sijecial pro- 
vision, before her full admi3si(ni into the Union? 

Under the firsi of these questions arose the dif- 
ficulty to which 1 adverted on almosi the first day 
of the session, to wit, an allegation that nineteen 
counties of the Territory were not represented in 
the convention which formed this constitution. I 
am free to say, that if such an omission had been 
even the result of accident, I should have consid- 
ered it a fatal objection; I should have considered 
that the convention did not comply with the 
charter of its organization; but, with all the in- 
formation which 1 can derive, I am biought to 
this conclusion: that, with the exception, I think, 
of four of those counties, ihey were merely nom- 
inal districtsof country laid olf, with names given, 
but with practically no population. As to the four 
counties which had population, it was by the fault 
of the inhabitants, not by the fault of the officers 
that the census was not taken, resulting from the 
fact thai those inhabitants had given liieir adhe- 
sion to what was known as the Topeka constitu- 
tion and form of government — a constitution and 
form of government which Congress had rejected, 
but in which they persevered. 

A remarkalile fact occurs with reference to one 
of those counties — the county of Anderson. It 
was alleged that the people of the county pro- 
ceeded 10 take a census therein, and to elect a del- 
egate, at their own instance. This delegate at- 
tended the constitutional convention. To be sure, 
he was a supernumerary, the full number of sixty 
having been apportioned, by Mr. Stanton, lo the 
other counties. However, he petitioned to be ad- 
mitted as a delegate. His petition was referred 
to a committee. The committee reported in favor 



of hisn(Imission,and the mommt tliis mport was 
mndi', ill,' priiiioii WMS wiilulrtiwn. I know it 
will lie s.-iid llii\t llio (Iclfi^ntf cduUl not ieiially sit 
thrre. Suppose l!i;it to lii! tiui', the people nf | 
Andpi-son counts cmiiIiI not complain of liis imI- | 
i>:iNsion; none conld coiniil:iin Imt the people of 
the (nher founties; iuit the peoj.le of the oiIkt 
cuiiiities did not compliiin. Tiie pi.'ople of the 
other counties, throu'.'h their delegates, offered to 
ndtnii him; he himself withdrew. My inference, 
from this fact, is, that tlie deleirate never wished 
lo ho adiniited; thai, supposing his application 
would l)e rejected, he preferred it; bill as soon as 
lie dis(!(iveri'd it would not lie rejected, he wiili- 
<irev,' it. Here is a key to the whole case. There 
was no i;ood faith in this transaction. 

AVoiild it have injured ihe constitutional con- 
vei;tion,or tin* consiiiuiion of Kansas, if tliedid- 
«>i:ate IVciUi AndiMson lind heeii admitted .' Why, 
let US turn to the Minnesotncase. (."onjrress passed 
nnact auttiorizingacorivention to be called in Min- 
nesota, to consist of twice as many delegates as 
there were Re|iresentalives in the Territorial Li'- 
gislaturo. OurComiuiitee on Territories, tlirough 
the honorable Sena'or froin Illinois, inform ns 
that the people of Mimiesota coiistiiied that to 
mean twice as many delejjaies a.s there w<'re Coun- 
cillors anil Representatives in the Legislature, and 
acc(>rdin«rly lliey elected that miinber. The act 
of Cmiijiiss lequired this con vention to nssetnhle 
on a <;iven dav in one chamher, and there, by uni- 
ted councils, with opportunity for personal con- 
ference and mutual debate, as iIk.- deliberation and 
judgment of all the dt legates together, to form a 
constitution and Stale government. The fact is, 
there never wtis any such convenlion. There 
vveri! two conventions on that day, neither of them 
consisting of all the delejrates, both of them to- 
gether con.sistin:^: of more delet^ates than even the 
extraordinary construction placed on the act of 
Congress would authorize, consistingof men who 
Were iiieii ly claimants fur seats on each side; and 
tiie constitution was formed by a committee of 
conference between these two bodies. 

It is said that this irregularity was cured by the 
eubseqiieiu vole of the peo[ile ratifyinii: the con- 
stitution. I can discover no reason why Minne- 
sota was at liberty to dispense with thi' conven- 
tion more thrill with the vule of the people. 'I'hey 
were both required by law. Hut, sir, be it so; then 
\ve come to iiiquiic what was this vole of the peo- 
ple of Minm sola, which is said to have healed 
ell the foinier irregularities.' I have heard Sen- 
aiois complain bitterly that no man was allowed 
to vote in Kansas on Ihe 21st of December, for or 
against slavery, unh ss he would vote for the con- 
stitution. That has lieen said again and again. 
It has been said that every elector was conipelled 
to vote for •' consiituiioii will) slavery," or " con- 
stituiioii wiih no slavery;" and therefore a man 
who was opposed to some provision of the con- 
stitution, or who did not u'isli to vote on thecon- 
etitution, could not vote eitiier for or against sla- 
very; and that has been a constant theme of 
deelauKuioii in this Chamixr since the 9th of De- 
cemljer last. Now, sir, let us turn to the casu uf 
Mirinesulu, 



1 shall read three sections from the constitution 
of Minnesota, by which it is provided not only 
that the vote upon the constitution shall be held 
on the same day and at the same polls with the 
vole for all the' ofTieers to be chosen under tlie 
constiiuiion, thus electing men to offices not in 
existence at the lime, but that no man should 
vote fur or against the consiiiution unh-ss he 
would vote for oflicers under it. He that runs 
may read : 

"Sec. 10 L'liDii ttie •iceond 'l'iic-(i;iy. lie- Klili dny o;' 
October, ll-.">7. HU rieclidii sJKill I.e lield liir mciiilMTs nl llie 
Hull oi R^'eresennilives of llie IFiiileil Sriles. Ciiveriior, 
r^ieUlrli.-|lilG.iverM(ir.slipreiiie;iii(liii-iri<'tji|cli.'e^.iiicliilierH 
ol' the l,rL'i~l;itiir.'. mid ;ill otiier etlicers (l.'>ii;ii;ileil in iIiik 
coM-tiliiiioii.aMd also fur the siil)ini<finM o:iliis (■(iii:,liliilinii 
to Ihi' peiiide tin- llieii :id<i|itioii or rejeciieii. 

'• Hkc. 17. U|>nM ilied:ivM)ih-i:;ua|i'd;is iU"i)r">niil. every 
frp(! white iMiiieiMlialiilini'l over liieii'.'e (III weiiiy niiev<'iir-, 
vvhd r^li;ill h;ive reMihd williili tlie limits (if the Shili' tnr leii 
(lavs |ir<'vi"il- M Ihe day ol" said elcetiiin. may vote lor all 
olhcers to he elecled under tliis coiisliliition, at micIi ele< 
tioii, and al.-o, lor or ajaiiisl the adii|itioii of the conslilu 
tioii. 

'• Sko. 18. rn votiiiK for or asaiiiFt the adoption of ttiif 
coii-iiiiitinii. ihi' worils ' lor coiisiitinion' or ' a-iaiiisl coi, 
slitiiiioii.' iiinv he wniteii or printed on the ticket nf vnrh 
voter; hut no voter shall vote lor or a^aiii>l this coii<liiu 
lion on a separae- Iialliil from Ih.al c.\>l hy him Tor ollicei* 
to lie elecled at said cleclion under this eon-liiiition."' 

If the form of submission on the 21st of De- 
cember, 1857, in Kansas, was fraudiiliiit, whai 
will become of the ratification of the coiistitntion 
of Minnesota by the people.' It is admilttd that 
her convention was irregular, or rather there was^ 
no convention at all; it is admitted that, from the 
very iniiiation of the proceedings the act of Cori- 
L'ress was not oliserved; but Senators stand here 
to-day insisiin^r on the admission of the State by 
the sole virtue of a popular vote. Here is the 
vote. Is it valid or invalid!' If it be valid, so 
WHS the vote ill Kansas on the 2Ist of December. 
If it be invalid, Minnesota has no more title than 
Kansas to lie admitted into the Union. But, sir, 
ill my judi:ment, in neither case, are the objec- 
tions material. 

I mi;;ht sive another illustration. If wo are to 
look into the consiitulions of Slates apidymg for 
admission, as the Si naior from New Hampshire 
[Mr. Clark] proposed last niuhi, to pass upon 
the wisdom or the justice of their provisions, lu 
decide whether the State should admit or exclude 
African servitude, should admit or exclude free 
negroes, what shall We say of this consiituiioii 
for Minnesota, under which tiie Ilepiesentati vi s 
chosen in October, lH;)7,aie elected forlife.' Theie 
is absolutely no provision of the constitutimi of 
Minnesota limiting the terms of the Re|.ri senta- 
tives already chosen. I grant it is a mere omis- 
sion; 1 have no doubt the convention inteiuled to 
make such a provision; but none appears. There 
would be no limitalion of the terms of the Sena- 
tors in that Legislature but for a provision, that 
whenever a census shall be taken by the United 
Stales, (U- liy the authority of the' Stale Lcgisla- 
lure, then llie seats of all the Senators shall be- 
come vacant. If it were not for that, I hi' Sena- 
tors in the Legislature of Minnesota would be 
chosen for life as well as the R.epresenifttives. Bui, 
I ri'peal, these objections are wholly immaleiiai, 
just as were all the arguments addressed to us in 



6 



reference to the provisions of the constitution of 
KtTnsas. 

My linnorabic fiionJ, the ScnMl.iv from lUiiuiis , 
[Mr. I'ouGLAS,] will) is not now in liis sif.t, as a 
itiinority "f ••'>•■ Coniiiiitice on Terriloiics, nrojcs 
•his pronnsition: that the convention in Kjinsas 
lierivrd iiswiiole powerfrom thcTerritorial Li-^is- 
l.iture, and, theref)re, the vnti- oi-dcrcd to be iHken 
on the 4th of JuMiiary, 1S.">8, hy tlie Terriioriai 
Leirislainri', was a proper vote upon the a(h)iilion 
or rcj'jciion of the constitution. It is said, fnrthrr- 
inore, that Kansas pi('S(;nis herself to lis now 
with asiniple peliiiiin in her hands. In my juiig- 
inent, the convfiition of Kansas derived \u> au- 
thority from theTorritnrial Legislature; it rec(;ived 
111! its auihoriiy from the people in tiie ehxiion 
of tiie del. ijaics. What has tlie Territorial Le- 
f^islature done? It has [irescrilied, in the act of 
February, 1S57, the lime, [ilace, and manner of 
eleclin<; (hiecjates, and tlie time when they shall 
Kssemiile in convention; that is all. Does that 
constitute the L''gi.--'latnri' the source of the powr 
to beexercisid by the dih'gates when assemblid .' 
Then let us turn to the case of Minnesota. Con- 
irress passed an act presciibing the timi', pla'-e, 
and manner for the election of deli'^'atps in Min- 
nesota, and prescribing the day when those dide- 
gates should assemble in convention. Did the 
convention of Miiin'-sola derive its power to make 
n const itntioii fir that people from the Congress 
of the United .States.' T^re we the sour^-e of aii- 
liiority from whicii the constitution of Minnesota 
is derived .-' If so, the constitutions of the States, 
instead of bcinir an expression of tlie will of the 
f)0ople to be governed by them, are ini'rely the 
acts of Conirress tliroiiL'h itsa^ieMts and dehirates 
assembled in the various States and Ti^rrilories. 
No, sir; in thi- a(U of i leetintc a di'lrgatf, the people 
hnvf clothed liiin with power, and, from the hour 
of his election, lii» is a representaiive of the people, 
not of the Legislature, and those di'leiiatis |)io- 
ceed.when assembled, in thee.'ci'rcise of a |iower 
whiidi thi> Legislature iii'ver had, anil nevercoulJ 
confer — thi^ [lovver to make a constitution, which 
isaliove all Lej^islatures. And therefore, in my 
opinion the attem|Ued interference of the last 'I'er- 
ritorial L' gislatnre of Kansas, at the special si'S- 
.eion called by Mr. Si'creiarv' Stanton, was urian- 
thorizt'd, factions, and void. Tiie Le:;islatuie 
}iad no more rii^hi to inti'ifere wiih the constitu- 
tion, to alter the mode of its submission, to touch 
uny provision in it, tlian v.'e have this day to re- 
vise the constitution of Minnesota. 

It is true, sir, Kansas pnsents herselfto us with 
n neiiiioii in her hand; Imt what are tin- contents 
of that petition.' Hmtoral'le Senators seem to 
imagine thai Kansas pititions us to approve her 
constitution; to pass our Judgment upon its [iro- 
visiiuis; to s;v, " this is vvisr, that is unwisi' " 
Why, sir, .Minnesota is also a pi'tiiioner with a 
"•iiiistitution ill her hand. What is the petition.' 
To approve the constitution.' Nn, sir; it is to 
admit the Siale. It is not necessary that a State 
should havi- any writti-n coiistiiutio';i. Many of 
the orii;inal Siaies had no written constitutions, 
or none ri'ibu'id toaiiexu'-t firm, until vears after 
ti-« Cunstitulion of the United StaieiJ had been 



ratified and was in operation. The State of Rhode 
Island was recived into the Union in iMav, 1790, 
with a form of goveriim''nt or^-aniz'-d und< r the 
royal cliarii'rofChaiIrs II., and moilifiid by mere 
usau'C; and I lielieve she did not chan^i- that for 
a written constitution until within jiImhU fifteen 
years. The ('onsiitiition of the Uniti'il States 
does not require the Slates to have written con- 
stilutions. In only requires them to luive repub- 
lican forms of goviTiinient; and those forms may 
rest on parol or usa<re. That is tlu- reason why 
the Sfati'S of the Union have an unlimited power 
to aber their ov/n constitutions, their forms of 
government, without the consent of Congress, 
provided they still continue to lie republican. It 
is only nqnisiie that a new Slate, as an old one, 
should have a form of governmint. 

Well, sir, let us look as wdl at the case of Kan- 
sas as of Miiim'Sota. I looked far enou'rh to see 
that, in each, provision is made for a Governor 
and a Legislature, to be chosi^n by the fiiople,to 
•'Xercise the authority of the State, to make the 
laws, and to execute the laws; a tfovernmrnt re- 
sponsilili' to the people; a governimnt over which, 
by the clearest principles of constitutional law, 
the peoide have complete power of revision. 
Thcfi', I am satisfied, is a republican form of 
government. If there' be any mistake in the 
constiintions, any omissions, if there be unwise 
provisions in them, or |>rovisioiis which, upon 
expi'rience, prove not satisf u-.tory, the people of 
these States, like the people of the old Spates, can 
n-f u'ln their institutions so as to suit ilnnisc Ives. 
Such lieiiig the case, I attach no serious import- 
ance toanyofthe objeciions I have shown in the 
constiiuiion of Minnesota, and nom; lo those 
whicli others have inadi- ULrainst the consiitution 
of Kansas. Each has a form of govi-rnment — 
a republic in form of governinHut. In the case of 
Miniii'sota, s!ie has the n-quisiie po|iulaiion. In 
the casi' of Kansas, all pariii'*-- here, and all par- 
ties in [vansas, the frifiuis of Topid<a, the friends 
of L''Comploii, till- Srnate and House of lli'pre- 
sentatives of the United States, have agnetl to 
waive that question. 

It is next said that Kansas cannot be allowed 
admission into the Union, because she invir sub- 
milted liiM- constitution to a dincl vote of i hr peo- 
ple. I have already said that, in my judi;ment, 
we have nothing to do with her constitution ex- 
cept to inqnirr wh.ether it providi'S t'or a republi- 
can firm of govi'rnmeiit; and we have no right to 
specify how, or in what manner, or by what so- 
lemnities she shall form or ail opt her consiitution. 
She has forinid it by a coiivi-niion of drli'-.^ates. 
That is the old form. That is t!ie form under 
wliiih the oriL'iniJl Statics act; d. That is tlu- form 
under which iiearlv all the new Stales havi- :icted. 
I think only six of ihe consiiiutions of the new 
Stales Were ever sn Inn it ted to the people, and none 
of the first constiiuiions ot'tlie old Scales. Gov- 
ernor Walker, in his letter of resignation, says 
that no constitution can ever be le;:iiiinate, or 
rightly enfirced, until it has been sul'inuied to 
till' people; because, he says, soverei^ni v cm only 
act directly and never throii>;li delegates, if thia 
be so, Senators, we are the sheerest usurpers in 



the world; for the Constitution of the United 
States, under wliicli wc assume to act, never was 
submitted to the pi-oplc of any State. It is in force 
lo-dav I'V the nitificalion of conventions in the 
original States, and Ijy tlie adoption of conven- 
tions in tiie new States. I have staled tliat the 
oriirinal Slates neither submitted their own con- 
stitutions nor tlic Constitution of the United Slates 
to a vote of the people, and only six of the ei^^h- 
teen new States thus submitted their constitu- 
tions. 

Does Governor Walker mean seriously to assert, 
that sovereignty can never be exercised through 
delegates or representatives ? Is it not in virtue 
of a delegation of sovereign power by the people 
that a Legislature defines every oftonse and lixes 
the punishment; that tlie judiciary examines into 
(pvery aceusation, and in the proper case inflicts 
the punisliment? Sir, is tliere a higlier act of sov- 
ereignty than to take tlie life of a citizen r And 
that ia taken by an executive officer in obedience 
to a mandateof the judiciary. Sovereignty, for- 
sooth, is so exalted and omnipotent, quotli Gov- 
ernor Walker, that it can make and unmake con- 
stitutions, dynasties, and all forms of government 
whatsoever; but so restrained withal, so humble, 
80 helpless, tliat it cannot even choose its own in- 
struments, its forms of expression, its modes of 
operation. We know, from the history and re- 
ceived opinion of all past time, that the people can 
as well auihorizi' delegates to make a constitution 
as make it themselves. They do this because it 
is inconvenient for the people to assemble in one 
place, as they did in thcancientdemocracies; and 
on account of liiis inconvenience, tliey choose rep- 
resentatives, and instruct those representatives as 
to theirwishes;and the representatives, assembled 
in due form of law, are the people by substitution. 
They act t'or the people, and in the name of the 
people, and by tlie authority of the people. If 
tliey choose to lake the advice of their constit- 
ueiiis, if they ciioose, in a question of doubt or 
of difficuliy, to remit the v.'hole question, or any 
part of the question, to the people in primary as- 
semblies, noliodycan object to it; but if they feel 
Bufficieiitly assured of the will and the wishes of 
their constiluenis, they have the power to proceed 
without any further sanction. In the present case 
of Kansas, I admit that the people miglit have pre- 
fcribed a churier for their delegates. They might 
kave said to tlie dilegates, " we will authorize you 
pimfily to ("or: ; and propose a constitution, but 
we reserve to ourselves a right, on appeal or sub- 
mission, to ri-visc, to accept, or to reject your prop- 
osition;" but the convention act of 1857 contained 
no such reservation. On the contrary, when it was 
returned to the Legislature by Governor Geary, 
without his approval, on the distinct ground that 
it contained no such provision, it was passi'd over 
the veto by a two-thirds vote of each Mouse. 
Therefore, the question, whether such should Ije 
the charter of the delegates, was considered and 
decided in the proper mode. Whatt-ver might 
have been the question, if the convention acthnd 
required submission, or if there had been no dis- 
cussion of the subjrct, in this case the authority 
of the convention is as absolute as if the act had 



said to the delesratcs, " you may submit it or not, 
as you please." 

Now, sir, it is argued that Congress iriust sub- 
stitute its discretion for the discretion of the del- 
egates; and because, (some say,) the delegates 
abused their powers, broke their promises, de- 
ceived their constituents. It would not be sin- 
gular if this were so. I think every honorable 
Senator will adtnit that he has never completed, 
during the period of his official life, one t( nth of 
what he proposed; and probably not one tenth of 
what he promised in good faith. Some have al- 
tered their opinions; some have found their designs 
impracticable, "l doubt whether there isaLegis- 
lature assembledin any State of the Union, with 
regard to which it could not be proved that one 
half or more of the members, in their various ex- 
hortations to the people, had promised a great 
many things that they never even attempted to 
perform. "That, however, ia not the question. 
The question is, whellier wc shall interfere in such 
a matter? whether we shall substitute our discre- 
tion for that of the delegates chosen by the peo- 
ple? 

I do not say there might not be a gross case of 
j usurpation, of fraud, and outrage, where some 
! interposition, but very little, would not be par- 
] donable. The alleiration is here that the delegates 
did not sul)mit the constitution as they promised; 
I that they did not keep certain pledges, published 
in the newspapers, or in the speeches which they 
made to the people. Well, sir, unless we assum« 
j a right to revise the proceedings of every conven- 
Itioirand every Legislature in every State, I see 
I no cause for interference. If the agents of the 
I people have violated their trust, let the people call 
I them to account. We are not the people. We 
I do not make the constitution; we do not ratify the 
i constitution; we do not approve the constitution; 
I we have no right to pass judgment upon the con- 
stitution. It is submitted' to us, as I said, merely 
I to show that Kansas has a constitution repuljlican 
1 in form, and upon that instrument the pi^tition ia 
: to admit her as a Slate. 1 say you can admit her 
i without a constitution; and wherever you have 
1 passed an enabling act for any State, you have 
I admitted thatStatewithouta written constitution; 
i you have admitted her by anticipation; you have 
prescribed her boundari( s, and you have said to 
! her, " proceed to the election of your delegates, 
j theassemblingof yourconvention,and the forma- 
: tion of your government; and upon compliance, 
with these requisites you shall i)ecome a Slate;" 
1 for so, and not otherwise, the Slate of Oliio en- 
tered this Union. 

j Where will this cour.se of objection to the pro- 

I visions of a State constitution end? In the State 

j which I have the iioiior to represent, the first 

I cnnstituti(m estal)lislied annual sessions of the 

L"irislatnre. The present constitution estaldishes 

bienniiil sessions. I have a very decided opiniotj 

i as to this question. I consider frequent sessions 

i of the Legislature essential to the liberties of the 

people, and I have never hesitated to denounce 

the systi'm of biennial sessions as dangerous, as 

a delegation of authority f u- loo long a period to 

mere executive ollicers. Therefore, sir, if I had 



8 



such a latilude as the Serii^tnr from New Hamp- 
shire claiincd last nisli', 1 should refuse to admit 
a State whose consiiiiitiim provided for biennial 
sessions of the Lcgisiiiiure. But I have no lati- 
tude of the sort — no riijlit lo say, in the case of a 
new Slate, ''unless every provision madeforyour 
internal Hlfans corresponds with my judgment, 
you shall not he received into the Union." If we 
could say this to the new States, why not to the 
old ones? IN'ew Slates are to be admitted on the 
same footing with the old ones; and if we have 
any such powi r, it applies to the old States as 
well as to ihe new, and the manifest duly of Con- 
gress would be to call for i he constitution of Ohio, 
adopied in September, 1851, and examine its jiro- 
visions. 

Sir, it is another development of that difference 
which begran with the i)ry;anization of our Fideral 
Government. The claim is, in substance, ihat the 
end will always justify the means; that if we dis- 
like the local instiiuiions of any [)eople we must 
alter them; that the Consress of th(! United States, 
instead of res train in<r itself within its own charier, 
shall reg^ulaie the aliairs of the ]ieople in all ihe 
States of the Union. 1 think the people of the 
States can take better care of themselves than we 
oan. 

These observations lead to the amendment 
v/hich I propose. The minority of the Commit- 
tee on Territories, the Senator from Illinois, uses 
language of tliis character: 

" Inasmuch as the Lec(iiii|)ion constitution provides a 
mode of am;'iKliiii'iil alter tin- jear 18()4, and Iliereby ex- 
cludes the iiossiliihly ol' any lawful clianctf uiililthat period, 
tSie Presiden' siiL'uests that Conuress may remove tlil< ol> 
s(acle by insertlnj^ a i-laiise ii. ihe art of admission annul 
Flnz so much of the coiisiiiuiioii iis proliihits any change 
iiiilil after the year 1864, and reipiires two tliirds of eaeh 
House of the Leyishiinre to authorize the people to vole 
for a convention, and ijeelariiiL'the rifiUx of tiie l.enisjaliire 
already elected lo e.ill a eonveniion, hy a niajr)rity vote, in 
violation of the cou>Iiluli()n under which its memherswere 
utected, aiul which they were .-worn to support." 

In the first place, is it true that the constitution 
of K.insas " thereby" — that is, by the provision 
of a method of amendment after 18C4 — " excludes 
the possibility of any lawful change until ijiat 
period?" Suppose the constitution had no provis- 
ion at all on the subject of an amendment at any 
time; snppi'se it was pi-rfecily silent, as many of 
the consiitutions of the ori^Miial States were — for 
our good, honest, republican ancestors, in the 
days of the Revolution, proceeded on the idea 
that there were some principles which it was not 
necessary to declare, which every man of ordi- 
nary comprehension, imbued with the principles 
of civil liberty, would at once acknowledge. 
Amon^: these Wiss liie principle ihatany power 
which could do an act could undo it; that, inas- 
much as the constitution of a State was formed 
by a convention of delegates, avithorized to be 
elected and assemlded by the Legislaiure, and 
that convention of delegates so elected and assem- 
bled had inaje a constitution, another convention, 
elected in the snnie manner and assembled in the 
same manner, by like authority, could undo it in 
whole or in part. That is the ground on which 
tlie earliest constitutions of the States, or many 
of them, were I'orHied. Nolhiiifj was said about 



the right of amendment; it was considered a mat- 
ter of course. 

The doctrine is indisputable. It is a universal 
maxim ihatany compact — I hear gentlemen call 
a constitution a conifiact; be it so — any compact, 
any covenant, any promise, any agreement, any 
law can be a!)rogaled by the power which ms.6n 
it: in the case of a compact, by the consent of 
the parlies; in the case of a law, by the Legisla- 
ture, i grant that where a right has been vested 
under a constitution or a law, so, as to have as- 
sumed the character of properly, you cannot di- 
vest that riirht without compensation, because, as 
to that, all the faculties of the constitution or of 
the law are fully executed; but as to its future 
operation, as to a new case which may originate 
under it, the constitution or law is entirely revo- 
cable. I have, from curiosity, applied to the old 
common lawyers on this sul'ject, since we have 
heaid so much of them; and am rather amused at 
the number of forms in which ihey express the 
principle. Lord Chief Baron Gilbert is very terse: 

"Solveturen hgainine quo ligatum est." 

Speaking ofcovcnanis, of deeds, of agreements 
between parties, signed, sealed, and delivered, 
with all the solemnity which can bind man t« 
man, here is Lord Coke: 

" Nihil tani oiuivenions est natural! aquitati quam unum- 
quodijuedissolvi eo ligamine quo ligatum est." — 2//isi. 2G0. 

Here is one sentence from Croke James, a very 
ancient book, and good authority: 

" ITnuiiiquodque eodein laudo quo colligatuin est dissolvi- 
tur."— Cro. J'lC. 63. 

Tindal, Chief Justice, one of the lights of mod- 
ern jurisprudence, says: 

"Qiiodque dissolvitur eodein ligamine quo ligatur." — 
3 ScutVsncw Reji.,^\.b. 

That is the law. These famous judges have 
not ihoiiirlit it necessary to indulge in argument- 
ation They have done liere as with the funda- 
mental principles of our jurisprudence; they have 
resorted to brief, pungent maxims exfiressed in the 
Latin lansrtiage. Ltt it he dissolved Ini the power 
intiick madcil. The civilians are of tlie like opin- 
ion: 

"J»r'i"— laws, con.'ti tut ions, for a constitution isnothins 
liui an orgatiieal law — "J«r« eoilem moilj ilef-liftni-iiticf (/.i« 
cunsliiiiiitttiir." — BcU's JJiiiCsl of Ihe iioinan aiid CicU i-uw. 

And so in the French law: 

" Le pouvoir legislatif a nonseulment la facnlto rle faire 
des lois. niais encore cette de les aliroger." — Rogron, Let 
Cinij Codes cxidiijues, introiluclion, til. 2. 

" The legislative power has not only the faculty of making 
laws, hut also that of abrogating them." 

Since we have come to first principles, I wiB 
qiaoie from the Institutes. I read now from Riith- 
erforih's Institutes of Natural Law, volume "2, 
chapter 3: 

'■ 'I'lie legislative power, as it is here defined, implies k 
power not only of making laws, but of altering and repeal- 
iiPi lliem. As the eirrunisiances, eitlierof the State itself 
or of t lie several individu.ils which compose if. are changed, 
siieh eluiinsand such duties as might once he beneficial may 
bi'eome u-eh'.-s,liur<l-nsome,oreven liurtful. If, therefore, 
the Ic^i.-lative power could not change the rules which il 
prescribes, so as to suit them to the eijcuiiislances of th< 
budy puUlic, and of the uiuuburs of that body, it could not 



9 



answer the purposes for which it was estnhhshed ; it could 
not at all lini«s t^ellle tlu'ir claims anil thi'ir diilics in such 
a manner as is most eonducivH to ilic aood of ilu; whdi', 
aiid of tlie several individuals which make up that «li(de." 

There is tlie rule and the reason of ilio rule. It 
stands on the most solid foundmion. Dut, Mr. 
President, what need of books here: we jiavo it 
in our own charter of lilxTty. As one of the 
truths declared to he self-evident, hy the repre- 
sentatives of the United Slates in Congress as- 
sembled, on the 4lh of July, 177G, 1 find (his: 
" that governments are instituted to secure" crr- 
tain inalienable rights there defined; "and that 
whenever any form of government bcromi'S de- 
structive to these ends, it is the right of tiie peo- 
ple to alter or abolish it, and to institute anew 
government, Iayii)<: its foundation on such piin- 
ciples, and organizing its (towers in such form, as 
to tliem shall seem most likely to effect their safety 
and happiness." 

This indeed, sir, is the principal element, the 
essential requisite, in every republican form of 
government — the rijrht, namely, of the people, in 
some peaceable and definite manner, to recon- 
struct their government, and provide for the ref- 
ormation of abuses. I hear Senators on this floor 
talk about constitutions in the States which are 
revolutionary. A revolution against whom ? Who 
is the mighty soveieii^n offended by this? One 
would suppose, forgetting the old sugirestion of 
tiie Scriptures that the Sabbath was made for man 
and not man for the Sabbath, that goverinneni.s 
are not formed for the people, but the people for 
the governments. What is the object of any gov- 
ernment .' It is to protect lite rights and to serurf 
the liberties of the people. There is no other just 
government. Every other is a usurpation. It 
may be maintained by arms; it may remain in 
power thousands of years; buta just government, 
an honest government, is organized to protect the 
rights and secure tlie lilierties of the people. 

Well, sir, suppose it fails — and 1 do not care 
whether it fails at the end of a century, or fails 
in the first half hour of its existence — if it fails in 
the very act of putiiiig it in operation, as in the 
case of the constitution of Minnesota, where a 
Legislature has been elected lor life — if, I say, the 
Government tails in the very act of attempting to 
put it into operation, the right of the people to 
form another government which will protect ihi ir 
rights and secure their liberties is as perfect and 
as absolute as if they had endured a tiiousaiui 
years of despotism. No convention can prevent 
It, for one coiiveniion is no higher than another. 
I go furthei-, sir. The people who were in Min- 
nesota in October, 1857, have no right to say to 
the people who may be there next year, or the 
year after, or twenty years hence, " we have, by 
a sort of testameniaiy disposition, provided a gov- 
ernment for you in all lime." Men can devise or 
bequeath their own property, but I never heard 
that they could make last wills and testami'iils of 
a political character, calling them constiluiions, 
by which they could bind their ciiildren, and iheir 
childien's children for a hundred years; and if 
they cannot do it for one hundred years, they 
cannot do it for ten years, as was provided in tlie 



Topeka constitution; no, sir, not for one week, 
for (uie day, for one hour. It is the same in prin- 
ciple. 

What is the object of government? I come 
back to ihal again and a;:ain. It is to protect and 
secure tin- liberties of those who live under it; and 
when it fails of that object, the peo])le liavearight 
to another government. If ihey cannot obtain it 
peaceably, our fathers said ihey had a right to 
take it by force of arms; but tlie essence of a re- 
publican government is that they can get it peace- 
ably and in regular form; that they need not resort 
to arms; that they need not resort to what Sena- 
tors call revolution; but in pursuance of the great 
idea of all government, of the vr-ry authority 
which they conferred on their delegates at first, 
they may assume to themselves at any time, in a 
due legal and orilerly manner, pn scrilied by law, 
the power of amendmrnt. " Blessed," said Lord 
Coke, " be the amending hand." 

Let me guard against misconstruction here. I 
do not say a constitution may not provide the 
manner of its amendment. I do not say that it 
may not interpose provisions calculated to require 
more thorough deliberation. I do not say that it 
may not require a majority of each House of the 
Legislature, ortwo thirds, orthree fifths; because, 
after all, the Legislature is elecied by the people, 
and what the people waul tiiey will compel the 
Legislalure to grant. 1 do not say that the people 
may not require, to prevent hasty or improper 
action, that the question shall l)e sulmiitied to 
them twice, or thrice, if you please; ortiiai it shall 
remain so many months for consideration; orlliut 
notice of the intended amendment shall be puii- 
lislied in this or that manni'r. I do not even com- 
[)lain of such provisions; liut I say that when a. 
constitution declares, as the Topeka constitution 
did, that in no manner, neither by a convention 
nor by the people, not by the unanimous vote of 
all those who live under it, and all those who 
exercise authority under it, whether as legislators 
or executive officers, can it l)e changed — whenevi-r 
a constitution declares that, the declaration is 
merely void; it needs no abrogation; it never ha J 
any life. 

It has been suggested that the people, unless re- 
strained, will too frequently or too rashlychange 
their government. To what dot sail that amount ? 
To an impeachment of ihe wisdom of the peopk' 
— 1101 liing else; an assertion that it is necessary to 
proviile some guardian for the people, to prevent 
them from doing an injury to themselves, and na 
there is no sucli guaidiaii alive, that it shall be 
written down in sr,mel)ody's last will and tesi;ir 
ment. No, sir; the danger is exactly the oppo- 
site. The danger is, and always has been, tnat 
the people will tolerate oppression and abuses 
from year to year, from generation to generation, 
rallier than inierrupl the ordinary course of pub- 
lic affairs by an apfxal to their original, inalien- 
able, and indefeasible right to form and reform 
their constitution and government. That, sir, 
was the opinion of Thomas Jifferson, and of all 
our illustrious ancestors who, with him, on the 
4ih of July, 177G, declared the causes which im- 
pelled them to separate from the dominion of the 



10 



British Crown. " PrutiiMico, indeed will dictate;" 
you see it isji mfre qiipsiinn of prudence. How 
prudent are ilie ponpli-? If ihey are not prudent, 
wlio is any more prudent? Wliere shall we find 
the ap[)oiniid cinss wliieh mnnopolizcs all ilic 
wisdom of I lie world ? " Prudence, indeed, will 
dictate that ^overnmpnts long established should 
not be changi'd for liffht and transient causes; and 
orcordin;;ly ail exp(Mi('nce liaih shown that man- 
kitid are more disposed to sufTer while e\'ils are 
sulTerable, than to riulit llieuiselves by abolishinij 
the forms to which they are accustomed." 

And now, sir, do the apostles of popular sover- 
eignty come iiither at last to declare that some 
ninety thousand people for the present inhabiting 
u new State of this Union, or d new State about 
to be admitted, may chain the people of tliat State 
when they shall have grown to be two millions, 
when all who made the present constitution shall 
have passed away, when all the purposes whicii 
they had in view have been accomplished, and 
new schemes of ambition or views of life are 
opened to the popular apprehension — that these 
two millions of freemen, whose rights and whose 
liberties are as sacred as those of the first ninety 
thousand, are bound by an inexorable fate, which 
no human power can un!>ind, to the terms of a 
constitution made for them in ae:espast? Is that 
popular sovereignty? f should call it the sover- 
eignty of dead niPii's bones. 

One of the ablest, most learned, and purest 
judges of tli(! Supreme Court, I mean Mr.. Justice 
Campbell, has expressed his views on this sul)- 
ject in the Judicial forum. It is admitted that the 
case of Kansas does not stand upon mere silence 
in her constitution; it is admitted that the Kansas 
bill of rights contains an unqualified declaration, 
to which I shall advert by and by — a declaration 
copied from the first constitution of the State of 
Ohio. Mr..lusticeCampbill,in (expounding those 
very words, not in a case of revolution, but in a 
case of peaceable amendment, spoke to thisenTect. 
I read now froni his opinion in Dodge vs. Wool- 
sey, I8th Howard, page 374: 

"The iiuiin'iv nrises, to wli;u .lid the niithorityof the pon- 
ple extcml ? It w;is ihiir liiiht to anieliinate every vicioii-; 
institiuioii, nrid to ilo wliati;ver ;ni eiili^hteiietl stiitesiiiuii 
sliip riii^ht presciilie lor iliir ailvaiiceiiieiu of their own 
happiness ; luiil llir this rnd. persons and tilings in tlie State 
were subinitlei! lo iheir authurity." 

Again, page .'i7.^: 

" Jfihe powers of tin; people ofa State nre inadequate to 
this object, then tliiir ..riMVe and solemn deolarations ot'their 
hL'htsninl their am lioriiy ovit ilieir {."ivi'innients, and olilie 
ends I'nr which their !;i)veriinieMts and the institiiliinis oT 
their siovernnienls were Iranicd. and llie responsihility of 
ruhns and inn'^i-tritcs to llicnr-ulves, are nothing but ' great 
swelling words of vanity.' " 

Amen, Mr. .Justice Campbell: you never spoke 
more truthfully in nil your lift;, t next read what 
he said at page .'{TOjOn the next question wheilier 
the people could be trusted, or stood in need of 
somebody to hold their hands for five or six 
years: 

"It any lie that the people may ahiipc the powers witli 
whicli they are invcsa;,! ; and, eveli in correcting tlie abuses 
of their Giivernin •nt. in ly no: in eVL-ry easu act witli wis- 
dom and eirciini picriini. 

" liut, for uiy pun, wIilmi 1 consider the ju.nice, modera 



tion, the restraints upon arid trary power, the stability of so- 
I cial order, the security of personal ri','lit>, and general liar- 
I inony which existed in the coniiny bcinre ihe sovereignty 
of governments was asserted ; and when the sovereisrnty of 
the people was a living and operative primipli . and soveru- 
iiients were administered subject lo the liniiialions and with 
relerence to the specific ends for which ihcy \vi'ri' organ- 
ized, and llieir meinbers recognized ihcir responsibility and 
dependence, I feel no anxii'ty nor apjii'licnsiini in leaving 
to the people of Ohio a 'complete powi'r' over their gov- 
ernment, and all the institutions and establishments it liaa 
called into existence." 

Sir, Mr. Justice Campbell has drawn the very 
dictinction to which I adverted. Popular sover- 
eign ty, according to the new interpretation, means 
the sovereignty of a governmi'iit. i prefer a sov- 
ereignty beyond the government. The same prin- 
cipli! was i-ecognized by Daniel Welister. I cite 
him because, certainly, as a constitutional law- 
yer, our opponents cannot except to hirn; and if 
gentlemen think these propositions too radical, 
although supported by the autlmritv of .Mr. Jus- 
tice Campbell, and of Mr. Justice Catron, and 
Mr. Justice Daniel, who concurred with him, I 
will introduce the very aposile of conservatism. 
In his famous argument in the case of Luther vs. 
Borden, 7th Howard, 31, 32, Mr. Webster said: 

"The 0|)pn>ite counsel have cited the c\aniples of the 
different States in which eimstitiitioiis have been altered. 
Only two provided for converuinn ;, and vet e )aveiitions 
have been jield in many of them. ISur how.' Ahvavs tlieser 
conventions were called together liy tlie Ijcii-laiure ; and 
no simrle constitution has ever b.'cn alter.'. I by means of a 
convention L'otlen up by mass meetings." 

It seetns Mr. Webster had not much opinion of 
the Topeka business. 

"There must be an authentic mode of ascertaining the 
public will somehow and somewhere. If not, it is a gov- 
ernment of the strongest and mot numerous." 

How was that will to be found out? The Le- 
ffislature chosen by the people — the same aitthor- 
iiy whicli first directed the peoole when, where, 
and in what manner to elect d'leirates to form a 
constitution, each member of the Li'",;is'ature, 
speaking on the instruction from his constituents 
received in the act of his election — inquire of the 
people : " will you have a revision of your con- 
stitution ?" If so, choose V'lur delegates; let them 
assemljle at such tiine and place as we have pro- 
vided by law, so that the business may be righful 
and orderly and peaceable; and when those dele- 
gates shall have assembhtl in convention and 
made a constitution, whether upon iheirown mo- 
tion or a popular ratification, insieail of being a 
petition, as we are told iiere, that constitution is 
the fundamental and organic law of the land. 

I have argued thus far as if the cnnsiittition of 
Kansas had no provision at any time for any 
ainendiTient. What, then, would have been the 
case ? I think I may say, without the citation of 
mori^ authority, or further arii:ument — it is a prop- 
osition too plain to be dispuied — th.at the power 
which made' a constiiuiioii can unmake or amend 
it. Rut, sir, is it true, as stated by the minority 
of tht; Committee on Territories, tliat the consti- 
tution of Kansas forbids any iimenilment? Tlie 
minority allegi? that " iiiasinuch as the Lecomp- 
ton constitution provides ,a mode of amendment 
after the year 1804, it iherebv (,'Xeludes the pos- 
sibility of any lawful cliange until that period." 



11 



Th.'it is mi arsrnl for yon. Wliat doi's lliocon- 
stituiioii siiv? It' till' spi'cilic nicilioil of amciid- 
inonl ilii'i-eiii Citiitaiiu'il be of iiiiy f.ircf, it is in 
di.roi;ntioii of tli(! <ri'iiiTiil, llie univorsiil, tlie in- 
dubiiiiMo [lowiT of luniMidnuMit wliicli would 
fxisi if no nii'ihoil li;id Ix'en piuscrilu'd. Il is in 
derosiiiioM of !i fundanu'iUal princi[ile. Let us 
ri;ad the clmsc; 

'•Alli-r tliu vcai- IS jt. whenever th« Loaislntiiro shall tliiiik 
it M' <"t!-s;i?v|() ;irMi'iiil.:ilti'r, orcliaiisi' lliisooiisiiiminn.llii'y 
kI ill ri'ni'iil:ii"pirl t'l Uic clcetiifsat Uic lu'M iiejiciiil c'li'onrin, 
two thiril- o:' I'lH iiii'MiliiM'.s iii' cacli lldUJi- o Micuiriii;, id 
vote lor or aiti i-^i oalliiii a roiivi'iitioii ; ami it' II. shall ap- 
psar tliai ti in ijorily <ii' till cni/.iiis ol' tlu; .Siali- Irivi^ voti'd 
tor a couvi'iitioii, tii ■ L<'iislatur' sliall, at its iii'Xt. r.'^iilar 
itessioii, cill a coiivi'iuio:!, I > consist ol" as iii my iii :inl) ts 
as thiTi' iiiav li:! ill flu- llm-i; of lli!pr<;s,.|iiativi!.s at the 
lime, to li.^ chosen la tli« -aiii' miiiiier, at the saiii" |)l lees, 
and liy the same electors that choo-e the ll.preseiitanves." 

"Afier ilin yom- 18GI." What may l)e done 
before tiiat ? The consiitntion is simolv silent. 
Tlieri" is no ne<j.iti ve word hei-e. The whoh? clause 
is in d fooj.viion, as I have saiti, of a nniveisal 
princi|ile; and yet, contrary to all tiie eau'ins of 
imerpreiaiiiin I have ever read, instetid "f beina; 
stricilv oonstrned, Senators enlarge it to a e.ir- 
cumlereiiee whieh its Jan'inasre cannot p issildy 
einbraee. What is the case befori' 1864? What it 
would lie if there had been nothii's: in the consti- 
tution — just exaeilv the satne. But the case does 
not end there. The consiiiniion of Kansas has 
careftdlyirnardeil tiieriiihts of the people. Haviiii:;' 
])rovided a special method of aniendnient afti.T ihe 
year l^dl, it lias taUmi pains to prevent any false 
constiiK^iion. I'here are two princi,:,les which I 
lliink can lie t.iketi for ceriaiii. One is, that all 
the pans of an itistrnnHnU ninst be taken to;r,.ther: 
one shall not desirov the rest — but each, in its 
})lace anii in its ordiT, shall receive a conslrnciion 
compiiihie Willi the iiiteijiity of the other paits. 
In addition, wha'cve'r d''roi:;ates from the rin'hts 
of tli<' people ninst be stric.tly construed. Tiial is 
ntiotliernni versal nia xini of the law. Accoidiii'^ly, 
tiie people of Kansas, in tliis cinistilni ion, have 
dcclaren in their bill of riirhis— in that which de- 
clares the great principles behind all constitutions 
and aiifivc all governnients — 

"Tliat the srreat ami esseiiliil priiiei|)|ps of lih-rly ami 
free. aoveriiaiKiit iii ly li ; reco^uizeil ami establi.slieil, we de 
Clare" - 

Declare what.' Let ns hear: 

— '• all p ilirie il p-nv T i> iiiUeriMit in th? people, and all free 
eoveriinif ntsare loiinded oa their aulhority" — 

iS'ot the antliority of soniebo.ly who lived a 
liuiidred yi.'irs aj;o, bm — 

— '•on th ■):- aiiili.irity, and instituted lor their hiaiefit; and 
Hiereliire'" — 

because political power is inherent in tin; peoplt;; 
inherent, so that it never can be separ.iti'd from 
tiniin bv any wit of man, by an v f nni if I in;^na.;i;, 
I'y an V pro\ ision of an v constl'uiion; ''and there- 
fore," b(;cansi' all free ^joMMiinunils are f nmded 
on the anihorify of the pitople, and instiiuted for 

tlic licnriil of the peopli; — 
— '• lliereTore tli'.iy liav • til till liiiii;s" — 
not after the year 18G4, but — 

— '-at all timesan in ilienahh^ and indftfeasiblvTiglU to alter, 
reform, or .ilioli h. tln-ir ti)rin of government, in such man- 
ner a> tiiey tlnnli proper.'' 



They must do it, ns Mr. Webster s.iys, in a 
peacetibh- and orderly mtinner. 'I'lie \iill of the 
peojili- must !)(! tise.erl.iined iiceordinu; to law. You 
cannot hav(' it according to the doeiiine nf To- 
fiidta. It must be by form of law. The Le^is- 
laliire must >;ive assent to the form of tin' law. 
This consiitiiiion hassaid, tifier the ye.ir |8(; I, the 
form of law shall be ihns tind s i; bel'n-e 18G4, 
it shiill be the very sinT'- form of law by which 
the consiiiniion was made. Wh it «ms th it .' An 
act of the Lei;isliitiire, in the fust insia lee, in- 
quiring of the people whetluM- t li y w mid have a 
convention; tind wluni the pi;oji|i! res imdd, an- 
other act iif the Legishitnri', providing' fir tlie 
electimi of deleirales, and the tissemMiii'.; n\' i\ con- 
veniii)n; and thereupon tlli^ .act of the people in 
choosiii'r the de'legtites, and of ihi- dedeijates in 
assembling in convention, and ('oraiiii:; a StatO 
constitution tiinl i^overnment. 

What is the e|]*;ct of that pi-iivision in tlie four- 
temith seeiioii of the schedule.? I can state my 
views on that point distinctly, 'i'liis consiitntion 
isan experiment; it is untried in all its provisions; 
it may work well, it may work n.idly; ant! there- 
fore the good |ieople of Ktinsis htive said, until 
18G4, this which is nev/, this which is untried, 
iliis which is a mere expinim'-ni, slnill lemain 
subject to the will nf the people, by their proper 
jiuiiiorities, in due form of hiw 'o ain^nd tind per- 
fect it, just as we are tillowed in the Sn ite, I be- 
lieve, to piM-fect a clausi! before tiny m nion to 
strike it out; bnt,iirti'r 18C4, if the constitution 
shmild stand so long, if, on experimici', it proves 
to be sufficient, yni sluill be snbj'ci, inn to apro- 
hil)ition ofamendment, but you slnill proceed with 
the utmost deliberation, it shtiU then require 
more ihtni a majority in the Legislatniv to submit 
any que.saion to the people. 

For these reasons, sir, it is mv opinion, care- 
fully and deliberately formed, tlnil the p. ople of 
Ktinstis, under this constitution, luive tis ample 
powers of revision and amendmeni as tiny could 
desire. If tliert! be anythiiiL" impro|ier in their 
constitution, if then! be anything which liie dele- 
irtites litive inserted with out due ririi'd to the 
wislies of the people, whether it bi; AlVieaii sla- 
very, or a railroad .system, or ti banking- system, 
or the qualification of State oiriem-s, or what not, 
then the peo|ile, if they deem it materitil, if they 
find it of any cmiseqnenec to the iidministration 
of their governimmt, the protection ol'tlnnr rights, 
the security of their liberties, may ammid that, 
and amend it in due form of hiw. Tlnit is my 
opiniiin of the consiitntion, ^iven, iis I Inivesaid, 
after the most thorough examiiuition of it, and all 
the principles which reltite to this su'ijecf. 

If any Slate, applying lor iidmission, were to 
present ;i consiiiutiim decltuing ili.it, tor some in- 
definite piM'iod, there should be no power of revis- 
ion or amendment by the people, 1 would turn to 
thill clause of the Federal C<insliiniioii which de- 
clares that ih(! United Sitiies sli ill !;u utility to 
I'very S'atiMi repulilican form of government. It 
would not be repn'iliean; it would be a di'spotism 
of (itirchmiiit; it would compel tiie people to rev- 
olution. 1 think ihe essence of repiildiciin gov- 
erinneiit is, thai the people need never rusorl to 



12 



violencf>. Wlnit is iliis juuaiitcp contained in the 
Coiistiuition of tiif United StiUes? It is not a 
guariinti-e lo tin? Sfnte^^ovcrnmrnt ; it is not a irnar- 
antce to ilnGovcninriUid L«'<ji>latiue of ilie Siale, 
because tli-y are the very persons lo he guarded 
aj^ainst. It is a iriiaramee to every citizen of the 
State ajjaiiist iiis own <r<iverninen(: and it has heen 
placed iindi'r the <ruardiintslii|) uf tlie Federal Gov- 
ernment re|)ri'scniini: all the Stales, in order to 
prevent ariy iisur|iatioii, by anarcliy, by the lapse 
of time, hy the accumulation of abuses, in any of 
the Slates'. 

This hrinsjs me to thelan^ua^e of my proposed 
amendmeni. Enteriainiiii; the views which I have 
expressid, ihai a provision such as the minoriiy 
of the coin mil tee impute lo ihis coiistiiuiion would 
be void, and iheiefne of no consiqiiencc; and en- 
tertaining I'litihermore a deliberate opinion that 
the risrhi to alter, reform, or abolish ihe constitu- 
tion ill due process of law, in a peaceable and 
orderly m.mner, is not only admitted, but is de- 
clared and iriiai^miieti, some gentleman may ask 
me what leed of any amendment? 1 offer the 
amendmeni to silen>-e a false clamor — for no other 
purposi' in ihe world. As to my own judgment, 
individually I should be perfectly sati.-sfi^-d to vole 
for the bill without ii ; bui the Senator fi'om VI ich- 
igan, [Mr. Stuap.t,] early in this session, com- 
mented im ihat [lar.igrapii, in answer to several 
pertinent su^'ijesiions. He was reminded of the 
fact that the State of New York had changed her 
constitution in disrejjard of the mode of amend- 
ment provided in it — not by a rcvolntion, for it 
was peai'ealily done; the people voted for it. He 
was reminded that many other States had done 
likewise. The Senator fi-om Maryland [Mr Ken- 
nedy] told us that his State has determined to do 
it, I believe within the last ten days, and neither 
party in the Leirislature dissented. I believe the 
State of Indiana ali.red her constitution wilhout 

Sursuiiij:; the fn-rn of amendment prescribed in it. 
lut wiiat was the answer of the Senator from 
Michigan to all this .' He was fully possessed oft 
the idea that the people of Kansas were under | 
some sort of terror and disability; that there was | 
a great hosiih' inHiKMice ready lo seize upon them; 
and he said to us, suppose liiey do alter the con- i 
stitution before 18G4: it will never avail. Indeed .' i 
The Lejiislamre submits the question to the peo- i 
pie; the [leople vote for ain'Midmeni; then the Le- 
gislature provides for the election of dele'i:ates; the 
delegates are chosen and assemble, and iheyform 
a consiiiution; that coiisiitution, if you please, 
is submitted to the people and ratified by tlie 
people. Who can prevent that constitution from 
taking I ffeci .' Noi the Legislature, because the 
Leirislaiure consented; iK)t the people, because 
they vot( d for it; not the Governor, for he signed 
the bill, oj- his veto was overruled; not the courts 
of the State, for they will stand or fall by the con- j 
stitution, and their jud^res are chosen by ihe peo- 
ple, either dii( cily or through an ap]ioiiitmenl of 
the Governor. 

Who is to prevent it? Oh ! said the Senator, 
the Governor, or the man who claims to have been 
Governor, and to lie serving out the frau:ment of 
a term, wiili or without the assent of the Legis- 



lature, (it must be without the assent of the Legis- 
lature, tor they have already comniiiied them- 
selves to the new organization:) the Governor, 
prciending that the Le^islatnre could not be con- 
vened, will apply to the Presidi-nt of the United 
Stales to subdue the people of Kansas, and over- 
throw their new consiiiniion, and the President 
will use the Aimy of the United States to sul)dHe 
them. I do not bi'lieve thai .Tames linchanan will, 
for he has declared twice, in the most unqualified 
manner, thai he admits this right of the people to 
amend theirconsliuuion. But suppose ihatjames 
Buchanan has ceased lo be in office; let the Sen- 
ator have the utmost limit to his imagination; let 
us suppose he can find a Governor in Kansas, 
serving out a fragment of a term, to call on some 
President who is regardless of his duty, and the 
Pri'sident should attempt to use the Army of the 
United States for the pnrfiose of subverting a con- 
siituti<»n established by the people: then 1 say to 
the Senator, although il is the most improbable 
suggestion I ever heard, the furthest possilile from 
all our experience, yet still, that there may be no 
excuse left, I will give him in this liill a curb for 
the mouth of any future President of ihe United 
States. 

I believe it was alsosuggested that the judiciary 
of the United States might make some decision. 
Suppose the judiciary did; of what effect would 
be their mandate.' I believe the judiciary of the 
United States sent a mandate to the State of Geor- 
gia, once upon a lime, reversing the conviction of 
a prisoner for murder. The mandate! was that 
the prisoner should be discharged. How did the 
judiciaiy of the United States succeed.' The 
Legislattiri! of Georgia passed a joiiil resolution 
directing the sheriff to hang the man on a day 
certain, and he was haiig(Hl. The mandate was 
of no effect; and if ten thousand judiciaries of 
the United States were lo attempt to say to the 
people of a Stale, acting through the foims of law, 
" we will make your constitution; we will say 
what your constitution shall be;" they will have 
as little satisfaction as from that mandate ad- 
dressed to the State of Gi'Oigia. 

But, sir, the Supreme Court of the United States 
never will entertain such a question. The court 
has solemnly deciiied upon argument of eminent 
Counsel in the case of Luther vs. Borden, that it 
had no power to decide v/hich of two instruments 
was the constitution of a Slate. I'ln? decision is 
here ill the book lo which I have referrtd. I will 
even guard that. The Senator shall have such a 
declaration in the act of admission that no Presi- 
dent and no judiciary shall ever interfere with 
that construction of the constitution of Kansas 
which her own people and her own duly consti- 
tuted authiniiies may jdace on it. 1 will prf)tpct 
the right of the State of Kansas to inler|>iet her 
own consiiiution; for it is her right, through her 
judiciary, througli her Legislature, and through 
her Stale officers. I will protect it against the 
Federal Government; and that is the sole purpose 
of my amendmeni — not that I think the amend- 
ment necessary — not that 1 think any such emer- 
gency as the Senator suggests will ever arise, for 
1 have not the slightest expectation of that; but, 



13 



as I said, to silence a false clamor, that it may not 
go forth to he assiTii-d fmni Maine to Georgia, 
from tlu' Atlantic to llie Pacific, that tlie C()nu:res.s 
of the United States Ims oppressed the pi'ople of 
Kansas — has forced on them a conslituiiori (I be- 
lieve that is tlie plirase now) which is niialtiralile 
for eijrht, ten, or twenty years. To he sure, sir, 
there is a pai-a^rapli ai the end of that section of 
the schedule to this eflect: 

" But MO alteration shall ha iiiadR to atTect the riglits of 
property in tlit- owuersliip of sjavi's." 

Why, said tlie Senator from Connecticut, [Mr. 
Foster,] although the restof tliecon;?titution inay 
be altered, they cannot uholish the institution of 
slavery ! Mr PresidiMit, I would answer to that, 
if it were true, just what I answered before: the 
constitution could no more provide that one fiart 
of it slioidd not he altered than none of it should 
be. Tills very clause, this fourteenth article of 
tke schedule to the constitution of Kansas, was 
copied from the first constitution of the State of 
Ohio, with the siiiijle exception that the unalter- 
able condition, as Senators call it, at the v\n\, is 
the converse of what was in the first constitu- 
tion of Ohio, namely, that no alteration should be 
made to introduce slavery into the State. 

We had a convention of d<des;ates in the State 
of Ohio, in May, 18.50, of which three of my hmi- 
ored colleaicues in theotlirr House were members. 
I propounded to one of them, in December last, 
the question, " What was your view, as one of 
the delegates of the peofile of Ohio, when you 
formed our present constitution; did you under- 
stand that slavery could not be toleraieii in this, 
if the people wished it?" " No," he said: " cer- 
tainly we thought oui- powers unlimited; we ex- 
cluded slavery in the new constitution because 
we did not like it, not because we were prevented 
by the old constitution." But the difficulty with 
this provision in the constitution of Kansas is, 
that it has no reference to the institution of sla- 
very at all; itisa mere protection ofavested right 
in property; it extends simply to the persons held 
as slaves at the lime of the alteration. In that the 
clause is simply a repetition of the bill of rights, 
namely, the tenth section: " Nor shall any pi'r- 
aon's property be taken or applied to the public 
use, unless compensation be made theietor." 
That clause would have been sufficient without 
tiie proviso coiiiained in the schedule. 

In that connection dermit me to say here, rather 
as an episode, a few words as to the unfairness 
said to have been practiced on the people by the 
submiss.oii of the 21si of Deceml er. Atone time 
I thought the complaii;t might possibly have some 
foundation, not having e.xamined thoroughly the 
constitutiot) of Kansas. When 1 heard eloquent 
Senators on tliis floor declare that no mon was al- 
lowed to vote for or against slavei'y without also 
voting for the constitution, it stiuck me as the 
interpolation of a test in the right of sulFrage as 
obnoxious as the test laws passed by the first Ter- 
ritorial L"gislatnre of Kansas. When, however, 
I come to look at the question further, I saw that 
the constitution at large was nt>t submitted at all, 
but only the seventh article. The seventh article 
has a name prefixed to it in the constitution; a 



title given to it— " Article seven. Slavery." That 
is the name of the article It is just as much 
known by that name as eaidi of us is known by 
his name. That seventh article is a simple addi- 
tion to the constitution. Tlu; constitiitinn is per- 
fect without it; it would have been just as good 
a constitution without the seventh anicle as with 
it, and might have gone into efT.ct without it; and 
at one time when I thonu:ht nf ofTeiinir a propo- 
sition to the Senate fn-tht; si tth uieiit of thisqucs- 
tiini, before we knew fairly what the vote had 
been on the 21st of Decemlii'r, I proposed to admit 
the Slate of Kansas, and allow Inr p('opl(- to vote 
afterwards, whetln.'r they would add the seventh 
article to the constitution or not, for it was just aa 
good without the sevi'iith article as with it; and 
they could add that aflrrwards if tiiey chose. 

What was the tjuestion sulimilted .' The con- 
slitution with slavery; tliat is, with the seventh 
article; or the constitution witli no slavery; that 
is, without the seventh articl.'. Tlie whole ques- 
tion submitted was, will you have the seventh 
article, " slavery," addid to the consiiiution or 
not.' Of course, the f)rm of words must be brief, 
and can never, in any such case, perfectly express 
the issue; but I do not think, after full considera- 
tion, ii could have been more saiisl'actcnily done. 

Rut now follows a difficulty. The Senator from 
Michigan declares it a pro-slavery constitution 
without the S'Venth article; and iIk; Senali>r from 
Wisconsin [Mr. Doolittli;] says: " I would 
rather have it with the seventh article than with- 
out it; it is a better anti-slavery constitution with 
the seventh article in than with ii out." On what 
is all this founded.' Because the constitution does 
not confiscate a vested right of |)roperiy. I am not 
going into Died Scott's case. G.id lorhul. We 
have had enough of that this session. I will take 
the broadest doctrine of squatter soverei^cnty ever 
proclaimed in the Senate bv my venerable friend, 
General Cass, the late colleague of ilie Senator 
friun Michigan. General Cass always claimed 
that the Territorial Legislature might either ex- 
clude or establish slavery. I think a great many 
denied that it could exclude, or, in strictness, es- 
tablish. They said it could not forbid, but might 
regulate. But General Cass, who was said to be 
the father of all squatter sovereiiiiiiy , uniformly 
proclaimed — I could not tell hoiv many limes I 
have heard iiim proclaim it in this Hall — that 
every Territorial Legislature could establish or 
proliiliit slavery. 

Well, sir, the first Legislature of Kansas estab- 
lished slavery. It is imt material whether they 
were right or wron^ in this, wluiher they acted 
wisely or unwisely; that is not the question. Nor 
is it material whether that Legislature was rightly 
chosen or was a usurpatimi. Let me grant all 
that is t;laimed in that regard; let me admit for 
the sake of the arirument what otherwise 1 never 
have admitted and never will admit, for I consider 
it a mere bald assertion — that every man, or the 
majority, if you do not require so much, of that 
Legislature in both branidies was a mere naked 
usurper. What then? It has been settled from 
the earliest time that the act of a man undercolor 
of olfice, actually in office, exercising the author- 



u 



ilyorili('ofnce,nltl)ou<;h i t cannot advantage liim- 
Bi'lf, alilinii};li ii cannot prevent liini from |iunisli- 
inent,aliliou<i:li it caiuiot [irovent liiin from beinj; 
ousted Ijv (/It' warranto, altlioui^li it does nnt au- 
thorizi' liini lo recover the fees of ilie office, is 
neverllii'lesM valid as to tliird persons. 

Here uiis a liinly of men de Judo the Lpgisla- 
ture of the Territory of Kansas. They passed a 
law auihonzin'r slaves to be taken into Kansas. 
Here was an honest citizen of your Siaie, sir, or 
of the Stale of Tennessee, or of the State of Mis- 
souri, wiio (lid not know whether tiie Lei;islaiiire 
had bei'ii riiihtfully chosen or not; he had not read 
this great Kansas book of tlie last Congress; he 
was in the same state of blissful ignorance in 
which our Repul.lican friends say most of us are 
to this day, including the President. He had 
slaves which were his l)y the laws of Kentucky, 
Tennessee, (u- Missouri. The tit|i> was recognized 
by llu' law.s of his own Slate. It was property, 
valid propi rly,for whicli he liad paid, and he read 
in the .vtaiui(S of Kansas that he iiad a perfect lil)- 
erty to lAn- that slave into Kansas with him, and 
thathe and hisslave mighilive peaceably together, 
and till the soil, and he went thither. Now they 
come to m;ikea cimstiiution; and do Senators seri- 
ously preiend thai the cause of human freedom 
or till- cause of honesty as between man and man 
requir( s iliai tnnt' who has acud in good faith, 
against \\h:im no iniputation of being connected 
with any usurpation or outrage can be made, shall 
be punished by the loss of that which wasdeclared 
to be piopi'rly by the laws of K.insas, as well as 
by the laws of the State whence he emigrated .' 
That w(uil(l be theconfiscation of privateproperiy. 

1 gram that pro|ierty in a slave may be taken 
by due process of law, but you must make com- 
pensaiioii for it, as forany other property. Itcan 
be done under the constitution of Kansas. It is 
expressly declan d that any man's property may 
be taken lor ihe public use by making compen- 
sation. Even the Government of Great Britain, 
thoroughly anti slavery as she is, provided com- 
pensation tor every slave she emancipated in Ja- 
maica, St. Chrisioplicr, and the rest of her West 
Indian dominions. Now the complaint is, that 
tliis coiisiiiuiion has not divested a present right 
of property. It extends no furtlier than a |iresent 
right. It follows the principle of the emancipation 
acts of New York, Pennsylvania, New Jersey, 
and oihi-r States. It declares that a slave, now 
a slave in the Territory of Kansas, shall remain 
such for his life, subject to be enfranchised by an 
act of the Legislature or by the act of his master 
— by the act of the Legislature on compensation. 
But is has no relation beyond those who are there 
now. The emancipation acts provided that the 
slaves then held as such should remain slaves for 
life, and their issue should remain slaves until the 
age of twenty-five. The constitution of Kansas 
is a be-tter emancipation act than that one which 
Dr. Franklin proposed in the State of Pennsyl- 
vania, t<ir it enfianchisos the child from its birth. 
It is a great deal better than Dunn's bill, about 
which we heard so much in the last Congress; for 
Dunn's bill did make slaves of all the children 
born in Kansas, within two years from its date. 



Let us see whether this be not so. The schedule 
provides: 

" If iipiiii such examination of said poll hooks, it shall 
appear tliiit a majority oitlic liyal vuics ca I ai >:iiil cl.'otion 
lie ill I'avnr (if iln; ' ciiiistiluiioii with no -lavcrv," tliiMi (lie 
article proviiliii!; for Nlaveiy sliall lie slriekcn Iroiii tliis con- 
sliliitioii hy till' pre-iih'iit of iliis eo:ivciitioii, and >hlV(;ry 
shall no loimer i-xisi in the Stale ol" Kinisa-^, cxci pi lliattbi' 
riiiht of prop^Tty in slaves »o!o ui i.'ii* TciiUj) l/^llall in no 
maimer he interfered willi." 

Tlie institution of slavf^ry is excluded liy the 
sovercigti voice of the people; " slavery shall no 
longer exist in the State of Kansas, except that 
the right of property in slaves now in this Terri- 
tory shall in no manner be interfered with." I 
believe the Senator from Michigan undertook to 
say the issue would be slaves; but the " issue" 
are not slavi'S — not a whit more than if they were 
already in Ijcing and residents of the Slateof Mich- 
igan. It is the plain distinction between a pres- 
ent vested ri^ht of property and a contingancy 
which may never happen. A vested ri<.;ht par- 
takes of the character of property. When you 
confiscate or condemn a vested ri^ht of projierty, 
you must pay for it; but a right which may 
never aci',rue,and therefore is not vested, may bo 
barred iii advance, as this constitution has done. 
It simply amounts, without thi; seventh article, to 
a declaration that those slaves which had been 
taken into Kansas under the solemn authority of 
the territorial law, and who were there held as 
property at the date of the constitution, shall re- 
main such, and the risjlit of properly in them bo 
protected, unless the Legislature should emanci- 
[)ate themand providecompi'nsation toiheowner. 
I believe the State of New Jersey is in that con- 
dition at present. Certainly I think as late as 
the last census quite a number of negroes in the 
State of New Jersey were slaves. They were 
slaves before her act of emancipation, and that 
act did not divest the right of the oaiieriii them. 
The consequence is, that, although we call New 
Jersey a non-slavcholding State, because sheha.^ 
abolished the ins/ihi:io(i of slavery, there ar« 
slaves held within her limits. 

Mr. President, I have detained the S.'nate much 
longer than I expected. My principal purpose was 
to speak to my own amendment. I think — I am 
frank on that point — that the president of the con- 
stitutional convention is bound to finish his trust 
before Kansas ought to be admitti d. I have al- 
ways thought so. 1 do not think he has a right 
to withdraw his trust from our examination. I 
style him the mere trustee of an express trust. 
And whatever the constitution might be, if it wer» 
one entire and perfect chrysolite, what diirerenca 
if the people do not control it? if those who have 
been elected to the various offices by the people do 
not obtain them.' But, passing by that objection, 
which 1 hope will be obviated by his action — if 
not before the bill comes to a vote in this branch, 
before it be passed in the other — it appears to me, 
that although the history of Kansas has been a 
history of conflict, of quarrels, of troubles, which 
appear almost interminable, an o|iportunity rs 
now presented for better limes. There cannot be 
an election, there cannot be a Legislature, there 
cannot be a convention, without dispute. If reg- 



15 



ular on its fncc, some say it is fraudulent beliitid 
its face; and if noi regular on its face, then it is 
void. We, j;ro\vn men, some of us men of ma- 
ture judunicnt and ripe experience, arc to sit iiere 
in the Cliinnljcrof the Senate of the United Slates, 
in our comfortable chairs, and imagine that a scat- 
tered population on the prairies, who have been 
hastily gathered ilicre within the last three or four 
years, will triinsacl ail their business, take their 
censuses, register their votes, hold their elections, 
and pass their laws, with the absolute accuracy 
of a clerk of the red tape in one of our Govern- 
ment otHces. We ought never to expect that. 

Now, instead of relating the history of past con- 
troversies, let us behold what the future lias in 
store. I have always approached the case of Kan- 
eas with a disposition to avoid recriminations, and 
an anxious desire that in some wise and timely 
measure, which could receive the approbation, if 



possible, not only of Senators from the North and 
the South together, but of Senators from every 
political organization, we might, as an offering of 
common patriotism and devotion to our commrm 
country, redeem Kansas from the anarchy which 
has been coeval with lu r existence. At the first 
term of my service in this body, that engaged our 
attention before all oilier subjects; butonly, as at 
this session, to provoke apprelumsions and ani- 
mosities. Now, sir, I trust that by enfrancliisinjf 
Kansas as a sovereign Stale, by vesting in her 
people, in the most ample and perfect manuir 
known loourConstituliim and our laws, the power 
to conduct her own governmtni, to alter, amend, 
and reform her institutions in whatever particular 
those institutions may bo objeciionaMc, we shaH 
redeem that which thus far has constituted tho 
most sorrowful page in all the histury of our Ru- 
public. 



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